Simon v Legal Services Commissioner - [2014] VSC 185

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 02956

PAUL SIMON	Applicant
v
LEGAL SERVICES COMMISSIONER	Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2014
DATE OF JUDGMENT:	29 April 2014
CASE MAY BE CITED AS:	Simon v Legal Services Commissioner
MEDIUM NEUTRAL CITATION:	[2014] VSC 185

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LEGAL PRACTITIONERS – Applicant an employee solicitor – Applicant charged with professional misconduct for giving undertakings in circumstances where compliance with the undertakings required the action of third parties which could not be guaranteed – Tribunal found applicant guilty of professional misconduct in that he failed to honour undertakings – Whether the Tribunal erred in finding the applicant guilty of offences with which he was not charged – Application for leave to appeal is granted and the appeal allowed – Proceeding remitted to the Tribunal differently constituted for determination according to law - Legal Profession Act 2004 (Vic) Part 4.4 - Craig v The State of South Australia (1995) 184 CLR 163.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Randall	Moores Legal
For the Respondent	Mr P Matthews	Ms T Stagliano, Solicitor to the Legal Services Commissioner

HER HONOUR:

Introduction

The applicant has been a solicitor since 1989. In 2008, whilst working as an employee solicitor at law firm Mitcham Whitelaw Pty Ltd (‘MW Law’), the applicant had the carriage of files for the firm’s clients, Mr David Graham and Mr Kevin Wilson, who were pursuing claims for damages in the County Court of Victoria against the Victorian WorkCover Authority (‘VWA’).

During the course of the proceedings, the applicant referred Mr Wilson and Mr Graham to a money lender, J.P. Finance and Investment Pty Ltd trading as ‘JP CreditLine’. Mr Graham and Mr Wilson each borrowed money from JP CreditLine. The loans were ‘settlement loans’, that is, unsecured loans advanced on the basis that the borrowers would be receiving settlement monies from the VWA by a particular date, out of which the loans (plus a fixed amount representing interest and fees) would be repaid.

As a part of the loan application process, Mr Graham and Mr Wilson each signed a document entitled ‘Irrevocable Authority’. In each case, the Irrevocable Authority was addressed to the attention of the applicant at MW Law requesting that, upon receipt of settlement monies, the amount owing under the loan be forwarded directly to JP CreditLine.

As a corollary to the Irrevocable Authorities, the applicant was asked to and did sign in respect of each of Mr Graham and Mr Wilson a document entitled ‘Response from Payor to Irrevocable Authority’ (the ‘Responses’).

The Responses, each dated 15 July 2008, read as follows:

We MW Law Barristers & Solicitors hereby acknowledge the irrevocable authority dated Tuesday, July 15, 2008, and signed by David Graham our client and will account to you for the monies being $8500.00.
Total amount owing is for Loan Number 261 for $4250.00 and Loan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 185
Decision Date: 29 April 2014

CaseChat Overview and Summary

The case of Simon v Legal Services Commissioner involves the applicant, an employee solicitor, who was charged with professional misconduct for giving undertakings in circumstances where compliance required the action of third parties, which could not be guaranteed. The Tribunal found the applicant guilty of professional misconduct for failing to honour the undertakings. The applicant sought leave to appeal against the decision of the Tribunal. The court had to decide whether the Tribunal erred in finding the applicant guilty of offences with which he was not charged.

The court examined the legal issues and found that the Tribunal had indeed erred in convicting the applicant of offences not charged. The court noted that the applicant was not charged with failing to honour undertakings, but rather with giving undertakings that he knew or ought to have known could not be fulfilled. The court held that the Tribunal's decision was flawed as it was based on a different set of charges than those brought against the applicant. The court further held that the applicant's conviction and penalty were invalid as they were based on a different offence than that charged.

The court granted the applicant leave to appeal and allowed the appeal. The court remitted the proceeding to the Tribunal, which was to be differently constituted, for determination according to law. The court relied on Craig v The State of South Australia to support its decision. The court found that the applicant's conviction and penalty were invalid as they were based on a different offence than that charged. The court held that the Tribunal's decision was flawed and that the proceeding should be remitted to the Tribunal for a new determination.

Orders